Petitioner is a state prisoner proceeding pro se with a first amended petition for writ of habeas corpus under 28 U.S.C. § 2254. Stuart Sherman, Warden of California Substance Abuse Treatment Facility, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Jeffrey White of the Office of the California Attorney General.
The petition raises the following claims: (1) the trial court erred in failing to instruct the jury on the lesser offenses of voluntary and involuntary manslaughter; (2) the trial court gave erroneous instructions on the gang enhancement; (3) the instruction on aiding and abetting was erroneous; (4) there was insufficient evidence to support a conviction for aiding and abetting murder; (5) the trial court erroneously failed to stay a firearm enhancement; and (6) Petitioner was sentenced under the incorrect Penal Code provision for the gang enhancement. (ECF No. 22.)
As discussed below, the undersigned recommends the petition be denied.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Tulare convicting him of second degree murder with gang and firearm enhancements.
Petitioner initially was convicted by a jury of conspiracy to commit murder and second degree murder, with gang and firearm enhancements. He received an aggregate sentence of fifty years to life. People v. Garcia, No. F062834, 2013 WL 3286207, at *1 (Cal. Ct. App. June 27, 2013) (Lodged Doc. 4.) Petitioner appealed. (Lodged Doc. 1.)
On June 27, 2013, the California Court of Appeal for the Fifth Appellate District reversed on the conspiracy count and remanded for a determination of whether Petitioner would be retried. (Lodged Doc. 4.) The court directed that, if Petitioner was not retried, the trial court would strike the conviction and sentence for the conspiracy count and amend the abstract of judgment to reflect that Petitioner was sentenced to 15 years to life for second degree murder, plus 25 years to life for the firearm enhancement, for an aggregate term of 40 years to life. (Lodged Doc. 4 at 52.) On October 16, 2013, the California Supreme Court denied Petitioner's petition for review. (Lodged Docs. 5-6.)
The state determined not to retry Petitioner on Count 1; he was resentenced on Count 2 to an indeterminate term of fifteen years to life, plus 25 years to life for the firearm enhancement, for an aggregate term of 40 years to life. (Lodged Doc. 11.) Following resentencing, Petitioner again appealed. (Lodged Doc. 7.)
On June 23, 2014, while his appeal was pending, Petitioner filed his first petition for writ of habeas corpus along with a request to stay the proceedings pending resolution of his second appeal. (ECF Nos. 1, 3.) His motion to stay and abey was granted. (ECF No. 9.)
On December 22, 2015, the Fifth District Court of Appeal modified the abstract of judgment to reflect the correct gang enhancement and to note that the enhancement was stayed. (Lodged Doc. 11.) In all other respects the judgment was affirmed. On February 24, 2016, the California Supreme Court denied review. (Lodged Docs. 12-13.)
Thereafter, the stay in this court was vacated. (ECF No. 21.) Petitioner filed the first amended petition presently before the Court. (ECF No. 22.) On May 3, 2017, Respondent filed an answer. (ECF No. 36.) On July 19, 2017, Petitioner filed a traverse. (ECF No. 39.) On December 7, 2017, Petitioner filed a document styled as a "Points and Authorities in Support of Traverse." (ECF No. 42.) The matter is submitted.
The following facts regarding the underlying offense are taken from the Fifth District Court of Appeal's June 27, 2013, opinion and are presumed correct. 28 U.S.C. § 2254(e)(1).
On the evening of August 28, 2009, two men wearing blue were walking along Avenue 416 in Orosi. There were three other people on the street who were not involved in the shooting, but witnessed the following events.
As the two men in blue walked on the street, a green Honda Accord appeared and pulled up to where the two men were walking. There were four men in the Honda. Someone in the car yelled the word "'SuRat'" at the two men in blue.
One witness [J.R.] testified that the Honda's driver and the man who was sitting in the front passenger seat got out of the car. They threw cans at the two men in blue. [FN2]
[FN2: On cross-examination, this witness was impeached with his prior statement to the deputies that the man in the front passenger seat, later identified as defendant, did not get out of the car.]
This same witness testified that the man sitting in the Honda's back seat, behind the driver, got out of the car and was holding a gun. The gunman initially aimed the gun at the witness, but then realized the witness was not with the two men in blue. The gunman then turned the weapon at the two men in blue, and fired five or six shots. One of the men felldown. The other man appeared to be hit in the leg, but he was able to escape.
Another witness [G.C.] testified that the gunman got out of the Honda's back seat, and the other three men did not get out of the car or open their doors. The gunman fired five or six shots, one man fell down, and the second man ran away. After firing the shots, the gunman got back into the car, and the Honda left the area at a high rate of speed.
The initial investigation
Around 7:50 p.m., deputies from the Tulare County Sheriff's Department received a dispatch about a gunshot victim on Avenue 416. The deputies found Arturo Bello lying on the road. Bello was dead, and his head was in a pool of blood. He had been wearing a blue tank top, a blue baseball cap, and white tennis shoes with a blue emblem. There were no weapons near him. There was a beer bottle found on the street in the victim's general vicinity.
Apprehension of suspects
Shortly after the shooting, the deputies received the report that a dark colored Honda was involved. Just after finding the victim's body, the deputies saw a vehicle matching the Honda's description. It was traveling in excess of 75 miles per hour. The Honda passed two deputies traveling in an unmarked patrol unit. The deputies immediately activated the signal lights and siren to conduct a traffic stop. The Honda slowed down and finally stopped.
There were four people in the Honda. Josh Hernandez (Josh) was the driver. Defendant was sitting in the front passenger seat. Santos Hernandez (Santos), Josh's brother, and Rodney "Lance" Zayas were in the back seat. [FN3]
[FN3: We will refer to Santos and Josh by their first names for ease of reference; no disrespect is intended.]
Josh was wearing a black baseball cap with a red letter "C," and had a red bandana hanging out of his back pocket. Josh had a tattoo on his arm in red ink which said "Hernandez de Catela."
Zayas had a .22-caliber live bullet in his pocket. Zayas also had "X4" and "TC" tattoos, which were gang-related. Santoshad a "C" tattoo on his arm, which stood for Catela. Defendant did not have any visible tattoos and was not wearing any red or gang-related attire when he was arrested.
At an in-field showup, one of the witnesses identified Zayas as the gunman, and said the three other suspects had been in the Honda.
Search of the car
A Taurus nine-shot .22-caliber revolver was found on the floorboard of the Honda's backseat. It contained one .22-caliber live round but no expended shells. A plastic case was also in the backseat, and it contained a single .22-caliber live round and a cylinder lock. The live rounds which were found in Zayas's pocket, the revolver, and the plastic case were the same brand.
There were two CD cases in the car marked with the words "NorCal" and other northern gang-related words. There were beer bottles in the car.
Searches of the suspects' residences
The deputies searched defendant's bedroom in his mother's house and found a Blackberry cell phone with gang photographs; a school group photo which depicted one person throwing a "four" sign and had derogatory phrases about the southern gang written on it; and other papers with gang letters on them. Defendant shared the bedroom with his brother, and the cell phone belonged to his brother.
When the deputies searched Josh's house in Bakersfield, they found a coffee mug with a drawing of the Huelga bird, the words "Catela, BPC," drawings of the "smile now, cry later" masks, and it said: "'F* * * those who oppose.'" There was a photograph of Josh "throwing up" a "four" sign with a red rag, signifying the Norteno gang.
Detective Crystal Derington testified that "Brown Pride Catela" was a northern gang in Cutler, and the words on the mug were "basically calling out their rival saying that they'll take care of business and do what it takes to stand their ground and take control of their territory...."
Zayas's house in Orosi was searched, and the deputies found a .12-gauge Mossberg semiautomatic shotgun under the dresser in Zayas's bedroom. It contained five shotgunshells. There was red clothing in Zayas's bedroom closet. The deputies also found three letters from jail inmates and a page of gang-rap lyrics.
The fatal gunshot wound
The victim suffered two gunshot wounds. The fatal wound entered his upper lip, just below his nose. The bullet traveled front to back, slightly downward, and slightly right to left. It fractured the victim's teeth [FN4] on his upper jaw, continued through the airway in the back of the mouth, severed the brain stem from the spinal cord, and went through the base of the skull. There was a fragment exit wound on the back of his scalp. A
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